First Page
205
Abstract
The right of publicity, which bars the unauthorized commercial use of a celebrity’s likeness, has become increasingly important in recent years. As generative artificial intelligence (AI) threatens to replace singers’ voices and actors’ appearances on screen, people are increasingly looking to the right of publicity to protect entertainers from exploitation.
Defining the right of publicity, however, is notoriously difficult. Since the right overlaps with both trademark and copyright law, circuit courts are currently split over whether to apply the trademark-based Rogers test or the copyright-based transformative use test.
This Note, in addressing this split, proposes a legal framework under which all right of publicity cases can be evaluated uniformly. The central point is that the right of publicity does not function as only a trademark or only a copyright, but as a combination of both. In identifying the two distinct harms associated with the right of publicity, this Note proposes a solution—called the “dual harm approach”—that combines both sides of the circuit split instead of choosing one over the other. By tying the right of publicity to existing trademark and copyright doctrine, this approach will enable judges to evaluate publicity rights claims with familiar concepts instead of starting from scratch.
Recommended Citation
Alvin Zhang,
And the Two Shall Become One: Conceptualizing the Right of Publicity as the Nexus of Trademark and Copyright Law,
27 Vanderbilt Journal of Entertainment and Technology Law
205
(2025)
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol27/iss1/5
